COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Lois Johnson,

Petitioner

v. Docket No. CR-08-98

Teachers' Retirement System,

Respondent

For Petitioner:

Lois Johnson, pro se

115A Jenness Street
Lynn, MA 01904

For Respondent:

Robert G. Fabino, Esq.

Teachers' Retirement System
One Charles Park
Cambridge, MA 02142

Administrative Magistrate:

Maria A. Imparato, Esq.

DECISION

Lois Johnson filed a timely appeal under G. L. c. 32, s. 16 (4) of the February 7, 2008 decision of the Teachers' Retirement System ("Board") to deny her request to purchase credit for her vocational work experience under the provisions of G. L. c. 32, s. 4 (1) (h ½) because she failed to purchase the service in a lump sum, or enter into an installment agreement to pay, within 180 days of the notice of eligibility. (Exs. 1, 2)

The Petitioner elected to waive a hearing and have the matter handled as a Submission Without a Hearing under 801 CMR 1.01 (10) (c). By letter of February 22, 2008 I instructed the parties to file all documents and argument no later than March 24, 2008 when the record closed. I marked documents into evidence. (Exs. 1 - 11) I marked the Board's written submission "A" for identification. A list of exhibits appears on the last page of this decision.

FINDINGS OF FACT

1. Lois Johnson, d.o.b. 2/20/1946, has been an active member of the Teachers' Retirement System ("MTRS") since October 21, 1995. Prior to her enrollment in the MTRS, Ms. Johnson was a member of the Boston Retirement system. (Exs. 3, 6, "A")

2. On February 14, 2006 Ms. Johnson applied to the MTRS to purchase credit for her prior vocational work experience under G.L. c. 32, s.4 (1) (h ½). (Ex. 4)

3. On January 19, 2007 Ms. Johnson slipped on black ice and suffered a right intertrochanteric hip fracture and underwent open reduction and internal fixation of the hip fracture on that day. (Ex. 8)

4. By invoice dated January 22, 2007 the MTRS informed Ms. Johnson she was eligible to purchase three years of vocational work experience. (Ex. 5)

5. The invoice informed Ms. Johnson, "If you do not EITHER purchase your service within 180 days of the invoice mailing date or by your date of retirement, whichever comes first, OR sign up for our installment payment plan within 180 days of the invoice mailing date and complete your payments within the five-year installment term or by your date of retirement, whichever comes first, you will NOT be able to purchase this service at a later date." (Ex. 5)

6. The invoice indicated that 180 days from the invoice mailing date was July 21, 2007. (Ex. 5)

7. Ms. Johnson was out of work for the entire spring of 2007. She was able to return to work for the last four weeks of June 2007. (Ex. 2)

8. Ms. Johnson did not pay the invoice amount, nor did she enter into an agreement to sign up for the installment payment plan, by July 21, 2007.

9. On February 4, 2008 Ms. Johnson contacted the Board by telephone to inquire about purchasing her vocational educational service. By letter of February 7, 2008 the Board informed Ms. Johnson that it could not honor her request because she had failed to pay the invoice, or enter into a payment plan, within 180 days of the date of invoice. (Ex. 1) Ms. Johnson appealed. (Ex. 2)

CONCLUSION AND ORDER

The decision of the Teachers' Retirement System is affirmed. Lois Johnson is not eligible to purchase credit for her vocational work experience because she failed to pay the invoice, or enter into an installment payment plan, within 180 days of the date of invoice.

G. L. c. 32, s. 4 (1) (h ½) allows a member in service of the Teachers' Retirement System or the Boston Retirement system who has ten years of creditable service, and who is or was employed in a vocational-technical school or program, to purchase up to three years of credit for prior periods of work experience "in the occupational field in which the member became a vocational-technical teacher and which was required as a condition of the member's employment and licensure under regulations of the department of education."

The section further provides:

Members in service of a retirement system who make application for this creditable service shall be notified by the retirement board of their eligibility for such creditable service, and, if they are eligible, shall also be notified by the retirement board that they have the following two options: (1) to purchase the service in a lump sum within 180 days of the notice, or (2) to enter into an installment agreement within 180 days of the notice to pay for the service. (emphasis supplied)

This section sets a final deadline for purchasing the vocational education experience, and makes no allowance for failure to meet the deadline for good cause shown. In the case of Adolph Petrillo v. Public Employee Retirement Administration, CR-92-731 (DALA dec. 2/15/1993; CRAB dec. on Reconsideration 10/22/1993) the Petitioner sought to re-establish membership in the retirement system after the age of 65, although G. L. c. 32, s. 3 (2) (f) provided that no person who re-entered the service of a governmental unit after attaining age 65 could become a member of the retirement system.

In its decision on the Petitioner's request for reconsideration of the decision, the Contributory Retirement Appeal Board opined:

The Appellant has requested that this Board reconsider our June 25, 1993 Decision finding him ineligible for membership in the Fall River Retirement System. The thrust of the Appellant's arguments is that we should apply equitable principles in favor of the Appellant's request. While we may empathize with the Appellant's situation, we have been unable to locate any statutory or case law indicating that this Board has the authority to employ an equitable remedy in the face of specific statutory language contrary to the position fostered by the Appellant.

I conclude that although I empathize with the instant Petitioner's situation, there is no authority for the Magistrate or CRAB to allow her request in the face of specific statutory language contrary to the Petitioner's position.

The decision of the Board to deny the Petitioner's request to purchase credit for her vocational technical experience under G. L. c. 4 (1) (h ½) is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Maria A. Imparato
Administrative Magistrate

DATED: 4/14/08

EXHIBITS

Exhibit 1 Notice of Retirement Board action, 2/7/08
2 Letter of Appeal, 2/11/08
3 Enrollment Form, 10/20/1995
4 Service Purchase Application, Voc-Exp service, 2/14/06
5 Invoice, 1/22/07
6 Board to Petitioner re: creditable service, 1/30/08
7 Petitioner to Board, undated
8 Letter of William J. Murzic, MD, 2/4/08
9 Petitioner to Board and DALA with Mark S. Vrahas, MD, appended
10 Petitioner's request for Submission Without a Hearing, 2/19/08
11 Magistrate to parties, 2/22/08
"A" for identification Board's submission


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